Art. 3. The Wrongful Act Must be the Cause of the Injury.

reasonable means of knowing, that consequences not usually resulting from such an act or omission were, by reason of some existing cause, likely to intervene so as to cause such damage. Underhill, 22.

A long series of judicial decisions has defined proximate or immediate and direct damages to be the ordinary and natural results of the negligence, such as are usual, and therefore might have been expected. Webb's notes to Pollock, 42, citing Phillips v. Dickerson, 85 Ill. 11, 28 Am. Rep. 607; Pennsylvania R. R. Co. v. Hope, 80 Pa. St. 373, 21 Am. Rep. 100; Bellefontaine, etc., R. Co. v. Snyder, 18 Ohio St. 399, 98 Am. Dec. 422; Lane v. Atlantic Works, 111 Mass. 136; Hill v. Winsor, 118 Mass. 251.

"The question always is, Was there an unbroken connection between the act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held that in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances." Milwaukee & St. Paul R. R. Co. v. Kellogg, 94 U. S. 469.

This rule is well illustrated by the celebrated squib case - Scott v. Shepard, 2 W. Bl. 892- which has been cited and followed in numerous authorities in this State, among the earlier, Guille v. Swan, 19 Johns. 381, where it was held with regard to the liability of a balloonist descending in plaintiff's garden, that "if his descent under such circumstances would ordinarily and naturally draw a crowd of people about him, either from curiosity or for the purpose of rescuing him from a perilous situation, all this he ought to have foreseen and must be responsible for." Followed by Vandenburgh v. Truax, 4 Den. 464, where it is held that even if no mischief may be intended, yet, if a man do an act which is dangerous to the person or property of others and evinces a reckless disregard of consequences, he will be answerable severally for the injuries which may follow. Thomas v. Winchester, 6 N. Y. 397 (410), an action against a dealer in drugs, who carelessly sold a deadly poison as a harmless medicine, holds that the de

act.

Art. 3. The Wrongful Act Must be the Cause of the Injury.

fendant is justly responsible for the probable consequences of his The balloon case and Thomas v. Winchester are cited as giving support to the conclusions of the court in Gibney v. State, 137 N. Y. 1 (6). While the squib case, the balloon case, and the case of the boy knocking out the faucet of a cask of wine (supra) are all considered in Swain v. Schiefflin, 134 N. Y. 471 (477), as leading to the conclusion of the court that the injuries, results which may or ought to be foreseen, of the wrongful or negligent act are also deemed the proximate consequences of it.

The law requires that the injury complained of must proceed so directly from the wrongful act that according to common experience and the usual course of things it might under the particular circumstances have reasonably been expected. To justify a recovery of damages they must be the natural and proximate consequences of the act complained of. These principles are elemental. Jex v. Strauss, 122 N. Y. 293, per Vann, J., 301.

The wrong and the injury must stand in the relation of cause and effect, or in other words, the act complained of must be the proximate cause of the injury sustained. In Lowery v. Manhattan Ry. Co., 99 N. Y. 158, this question is fully considered in the opinion of Miller, J., and the earlier authorities collated and commented upon, including Scott v. Shepherd, 2 W. Bl. 892. The leading cases of Lynch v. Nurdin, 1 Ad. & El. (N. S.) 29, and Guille v. Swan, 19 Johns. 381, are also considered at some length. The court holds that it is enough to charge a defendant that he is the author and originator of the wrongful act which produced the injury, and wherever it appears that the effect of the defendant's act was the probable and natural consequence of said act, he is liable therefor. Vandenburgh v. Truax, 4 Den. 464, is also cited and commented upon, it being distinguished from Ryan v. N. Y. C. & H. R. R. R. Co., 35 N. Y. 210.

This subject was still more fully considered in Laidlaw v. Sage, 158 N. Y. 73, where it was held that the principle of proximate cause is applicable to actions for tort, and that the extent of an injury cannot be attributed to a cause unless without its operation it would not have happened; and it is said that the proximate cause of the event is that which in a natural and continuous sequence unbroken by any new causes produces that event, and without it that event would not have occurred; that the act of one person cannot be said

Art. 3. The Wrongful Act Must be the Cause of the Injury.

to be a proximate cause of an injury when the act of another person has intervened and directly inflicted it. The opinion of the court, per Martin, J., considers the definitions of proximate cause laid down by the text-writers, and collates the leading cases in this State, more especially the more recent authorities in the Court of Appeals. This case is followed in Seifter v. Brooklyn Heights R. R. Co., 169 N. Y. 254 (259).

The principle that an actionable injury must result from the act of the defendant, and that it must bear to the act of the defendant the relation of cause and effect following from a moving cause, is considered in Hoffman v. King, 160 N. Y. 618, where the court considers more particularly the authorities on this subject growing out of fires caused by negligence.

The rule is, as laid down in Laidlaw v. Sage, supra, that where the injury is occasioned by one of two causes, for one of which defendant is responsible, and for the other of which he is not responsible, plaintiff must fail if he does not show that the damage was produced by the former cause. This, however, does not affect the principle of Barrett v. Third Ave. R. R. Co., 45 N. Y. 628, that where the acts of two defendants contributed to the injury both defendants are liable.

Hirschberg, J., in Leeds v. N. Y. Telephone Co., 79 App. Div. 122, considers very fully upon citation of the leading authorities in this State, the rule as to the meaning of the maxim causa proxima, non remota, spectatur, stating that it does not mean that the cause which is nearest in time or space to the result is necessarily to be regarded as the proximate cause, but that the primary cause may be the proximate cause of a disaster.

The question of proximate cause, as well as the rule that one is responsible for the probable consequences of his acts, are especially important in the law of negligence, where its principles are most frequently applied. It frequently arises where special damages are claimed in slander and libel, as in many other cases. It follows that in order that there may be a recovery in tort, three things must concur. First. A legal right must be violated, and the party seeking redress must suffer injury, which injury must be either proven or presumed by law. Second. The injury must be the natural result of the wrongful act. a case where the law allows a remedy.

Third. It must be

Art. 4. Malice as an Element in Torts.

ARTICLE IV.

MALICE AS AN ELEMENT IN TORTS.

Very much has been written as to whether malice is a necessary, or even proper, element to be considered in connection with torts generally, and the discussion has taken an exceedingly wide range. The word "malice" has been characterized by English judges as "that unfortunate word." Abrath v. North Eastern Ry. Co. (1886), 11 App. Cas. 247 (253). As that unfortunate epithet. Allen v. Flood (1898), App. Cas. 1 (50). As a word which is susceptible of many different meanings." In Allen v. Flood, p. 92, Sir James Fitzjames is said to have used this language: "It seldom has any meaning except a misleading one." The general view of lawyers and judges may be epitomized in the language quoted by Mr. Krauthoff in his article on "Malice as an Ingredient in a Civil Cause of Action," (Report American Bar Assn. (1898), pp. 335-351) from the opinion of Lord Macnaghten in Allen v. Flood, p. 144. "Sometimes, indeed, I rather doubt whether I quite understand that unhappy expression myself." This difficulty seems to have arisen not only from the use of the word "malice" in two different senses, and to convey two distinct ideas, but still further from its use in connection with actions for torts, for two separate and distinct purposes. First. It means a wrongful act intentionally done in the willful violation of a known right. Allen v. Flood (1898), App. Cas. 64. A conscious violation of the law to the injury of another. Ferguson v. Earl of Kinnoul, 9 Cl. & F. 321; Whitefield v. Southeastern Ry. Co., El. Bl. & El. 115 (121). Second. The word "malice " in its proper signification means ill-will, spite, or bad motive as against another, or recklessness toward the rights of others. Allen v. Flood, p. 63. Third. In addition to these conflicting uses of the word, the first denoting the so-called "malice in law," the second, "malice in fact;" the latter malice is defined as "the mental condition or purpose which judicial decision has made an indispensable condition to the wrong" in certain actions of tort, of which malicious prosecution is the type. Bishop, § 231. This means that such "actual malice," " express malice," or "malice in fact" must be shown to sustain the action, and this

Art. 4. Malice as an Element in Torts.

is also true of libel and slander where the defense of privilege is interposed.

But in most torts "actual malice" is not necessary to be shown to sustain a recovery, but it is sufficient to show that the act is wrongful. In these cases, however, "malice in fact" may play an important part since it is admissible, and, in fact, necessary, for the recovery of exemplary damages, or damages by way of punishment in excess of compensatory damages, which will be awarded independent of motive. However in these cases a cause of action must exist independent of exemplary damages. Some actual loss must be proved, or as in case of libel and slander, presumed as the consequence of the act complained of. Hale on Damages, 207 et seq., and cases cited.

Malice is said to be divided into classes corresponding to the use of words in its different meanings, as above stated. First. Express malice; malice in fact, or actual malice; and Second. Implied malice; malice in law, or constructive malice. Express malice being personal spite or ill-will, and implied malice the wrongful act done intentionally without just cause or excuse. 19 Am. & Eng. Encyc. of Law, 624.

Malice in fact is not confined to personal spite or ill-will, but includes every unjustifiable intention to inflict injury on the person defamed; or in the words of Brett, L. J., every wrong feeling in a man's mind. Stuart v. Bell (1891), 2 Q. B. 351, cited Fraser on Libel and Slander, 46, to which the author adds: "It would greatly tend to accuracy of thought and clearness of expression in connection with this branch of the law, if the word 'malice' were only used in the sense of malice in fact, since it only leads to confusion to use it in the sense of malice in law, the intention of doing an act which in fact is the breach of a general legal duty, whether the actor knows it or not."

Bigelow (on Torts, § 35) says: "Malice is one of the most perplexing terms of the law especially in relation to civil liability; it is continually used in different and conflicting senses." The author further says that "popular malice" imports an evil motiye or design, but that ordinarily malice in law does not import motive, but simply that the act in question was done with knowledge that it would do harm, or with knowledge that it was unjust or reckless, or with wanton disregard of another's rights. Citing